https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12203

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CRIMINAL APPEAL NUMBER E002 OF 2024** **CECILIA KABIRITHO……………………………..…………APPELLANT** **VERSUS** **REPUBLIC….…………………………..…………………..…….RESPONDENT** *(Being an appeal against the conviction and sentence of Hon. M.Odhiambo– CM delivered on 07-12-2023 at Meru law Court. Cr Case No. E1355 of 2023)* **JUDGMENT** **Background:** 1. The appellant was charged before the Chief Magistrates Court at Meru law court with the offence of trafficking contrary to section 4(a)(ii) of the narcotic drugs and psychotrophic substances control amended act of 2022. 2. The particulars of the offence were that on the 8th October 2023 at Kathirune village within Nyaki East sub-county within Meru county she trafficked by storing in her house narcotic drugs namely cannabis sativa to with 58 rolls of the street value of approximately Ksh.5800 in contravention of the said act. 3. The accused admitted to the charges. 4. The accused was found guilty of the principal count, convicted and ordered to pay a fine of Kshs.300,000 or in default to serve 5 years imprisonment. **The Appeal** 1. Aggrieved by the said conviction and sentence, the appellant lodged on a dated petition of appeal on 9th day of January 2024 which she raised the following grounds: 2. That the learned trial magistrate erred in matters of law and fact by failing to consider pretrial detention period pursuant to section 333(2) of CPC. 3. That the learned trial magistrate erred in matters of law and fact by failing to note that the evidence adduced was not sufficient to sustain conviction. 4. That the learned trial magistrate erred in matters of law and fact by failing to take into consideration the appellant mitigation. 5. That the learned trial magistrate erred in matters of law and fact by rejecting the appellant defence without giving any cogent reasons. 6. That since he cannot recall all what transpired during the trial, he wishes to be availed with the trial proceedings to draft more cogent grounds. **Appellant’s submissions** 1. The appellant argued that the conviction and sentence in HCCRA E1355 OF 2023 had to be set aside because the trial court fundamentally misapplied the law, resulting in a failure to prove the case beyond a reasonable doubt. **Respondent’s Submissions** 1. The respondent submitted that this Honorable High Court finds the appeal lacks merit and dismisses it in its entirety. **Analysis and Determination** 1. This court’s duty as a first appellate court was set out in **Okeno vs- Republic** where it was held as follows: **“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. Republic [1957] EA 570.) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s** **findings and conclusions; it must make its own findings and draw its own conclusions.** **Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958)** 1. With that principle in mind, I will look at the evidence adduced before the trial court. 2. The Prosecution adduced the following evidence which were 58 rolls of bhang produced as PEXB 2, an exhibit memo form as PEXB 2 and a Government analyst Report as PEXB 3. 3. The accused in mitigation asked for forgiveness and admitted to the charges to save the court’s time. 4. Section 4(a)(ii) of the narcotic drugs and psychotropic substances (Control)Act(Cap 245) states that: **“where the person is in possession of more than 100 grams, to a fine of not less than fifty million shillings or three times the market value of the narcotic or psychotropic substance, whichever is** **greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment".** 1. The Respondent opposes this appeal brought by the Appellant (Cecilia) against the sentence delivered on 07/12/2023 by the Honorable Court at Meru. The Respondent prays that this Honorable High Court finds the appeal lacks merit and dismisses it in its entirety. 2. The Issues for Determination in this case are; 3. Whether the Appellant has a right to appeal against the conviction after a voluntary plea of guilty. 4. Whether the sentence of a KSh 300,000 fine or 5 years imprisonment in default was harsh, excessive, or illegal under the circumstances. 5. On the issue of right to appeal, the Appellant cannot challenge her conviction because her admission of guilt was unequivocal, recorded properly, and the facts were admitted without coercion. Under Section 348 of the Criminal Procedure Code (Cap. 75), an appellant who enters an unequivocal plea of guilty is legally barred from appealing their conviction, restricting the scope of this appeal strictly to the severity of the sentence. 1. On Legality of the Sentence the trial magistrate carefully balanced the mitigating factors (her admission of guilt) with the aggravating factors (the nature of the drug trade). A court of appeal will only interfere with a trial court’s sentence if it is shown that the magistrate acted on wrong legal principles, which is not the case here. The fine is reasonable given that narcotics trafficking threatens public safety. 2. Consequently, the trial magistrate exercised proper judicial discretion by heavily scaling down the maximum statutory penalties to reflect the low market value of KSh 5,800, and because an appellate court will not interfere with a sentence unless it is shown that the trial court acted on wrong principles or arrived at an illegal figure—neither of which applies here—the current sentence remains perfectly legal, proportionate, and necessary for public deterrence. 3. In conclusion, I find that the trial court exercised its sentencing discretion judicially, lawfully, and with considerable leniency given the strict provisions of the Narcotic Drugs and Psychotropic Substances Act. 4. The appellant has stated that the trial court has erred in the matters of law and fact for failing to consider pretrial detention pursuant to Section 333(2) of the **Criminal Procedure Code (CPC)** which dictates how a prison sentence is calculated and applied. 5. The said provision mandates that court sentencing a convicted person to take into account the time already spent in remand. This point was reiterated in ***Ahamad Abolfathi Mohammed & Another v Republic (2018) eKLR*.** 6. The accused was arraigned in court on 9th October 2023. She was convicted and sentenced on 7th December 2023. 7. The two months she spent in custody may appear insignificant, but in reality, every day in prison counts. 8. Therefore, it is ordered that the sentence will be deemed to have commenced on 7th October 2023. 9. Apart from this finding the appeal is found wanting in merit and it is dismissed. **Dated, Signed & Delivered at Meru this 30th day of July.** **H. M. NYAGA** **JUDGE**